Jim Harris Anniversary- 29/11/2009

Jim died one year ago today. He has been much in my thoughts this past year, and I have missed him a great deal. In particular, I have missed his bubbling energy, his many emails, the verbal battles at libdins, the do-it-yourself seminars at Golden Gate. We are all the poorer for his passing.

As a tribute to Jim I have posted here one of the last discussions he initiated on 6th September 2009, on the subject of law. I have also posted the various replies to his original post. I have no doubt Jim would have objected to this, on a number of grounds. But so be it.

I like this from Café Hayek. It disentangles for me the legalistic meaning of the word ‘law’ that I have come to distrust so deeply (here I’m afraid I blame legal chaps who don’t try hard enough to talk ordinary English), and the real meaning of ‘law’ that I’m happy to use instead … call it community norms, or commonlaw, or whatever. It restores meaning to the term ‘rule of law’ and enlightens for me our (JH/GZ) year-old findings about which measured components (factors) actually combine best (weightings) to correlate with the fast economic growth which I naturally assume is a universal feature of free societies where true rule-of-law prevails. I’m much more interested in judges as arbitrators beholden to local communities, than in shenanigans by the likes of Hlope and Motata and the JSC. I wish our pretty-good Concourt would move along faster in striking down most existing statutory law. Perhaps I can also blame ‘lawyers’ for not bringing enough well-formulated cases to Concourt. Maybe the old CFF list of possible cases should be dug up … but again, did you got a sponsor?!

:)…j

Hayek outlines a particular view of what judges should do–they should discover the law. Hayek was making a profound distinction between law and legislation. Law is what emerges from our behavior interacting with each other and it evolves. Legislation overlays that and effects it. But what judges should do when deciding a case is to discover what our expectations were of the behavior of the people we interact with.

To use the example from the podcast, suppose I buy a house from you and you promise in the contract to deliver it in “good condition.” What does that mean exactly? Each of us has an expectation of what that means in America in 2009 and it’s probably different from what it would be in Argentina in 1875. In America, if I buy a house from you and find a lot of your stuff still here because you didn’t have time or didn’t want to bother with clearing it out, you probably have not fulfilled the contract. In another time and place, that might be a feature not a bug.

But the way I understand Hayek is that if I take you to court because I don’t think you lived up to the contract, then the goal of the judge isn’t to figure out what the legislature meant if it mandated a house being turned over in “good condition” but rather what you and I would expect from each other in such a situation.

Expectations are crucial because they allow me to plan with some measure of certainty, using the information that I have (and that others may or may not). So for Hayek, norms are crucial in helping us to interact and are essentially what he calls law.

The only problem Jim, is that since nation states came into existence, it developed a ‘sovereignty norm’, namely that ‘legislation’(also called ‘civil law’) overrides ‘law’ (norms, customary law or common law’) where these compete.

Since law is not ‘made’ in any literal sense, but arises from ‘human conduct and not from human design’ (to use Hayek’s famous formulation) and legislation (is made by parliament of 51% representing an untested 51% view of the population), there is a significant difference between the rule of law and rule of legislation.

Indeed, ‘rule’ of law no longer means: that actions ought to conform to law (the common law or reasonable expectations). The rule of law now means: actions must accord with the expanded conception of LAW, meaning the common law as amplified or amended by legislation.

Our Constitution goes further and tests both the unmade customary norms (common law) and legislation to its standard. Some say this IS the rule of law, other suggest it creates a discretionary realm for judges of the constitutional court not to ‘find the law’ but to reinterpret or create it. To judges rule of law means: actions authority must obey the judgments of the court.

The problem with legislation and bills of rights is that it allows ‘law’ to be modified rapidly thus making it increasingly difficult for the law to be part of a commonly understood tradition in which ‘ignorance of the law is no excuse’ and in which people can formulate ‘expectations’ reliably.

Today you need legal advice to help you understand what to expect and every time new legislation comes out even lawyers have to speculate what it means until the court ruling start emerging. Thus we end up with the rule of uncertainty (at least some of the time).

I’ve always understood Rule of Law to mean that authorities have to follow principles encapsulated in a set of rules rather than use their discretion when dealing with the public. The idea as I understood it was to remove the element of interpersonal influence when judging disputes, to encapsulate wisdom (so judges don’t have to reinvent the wheel) and introduce a measure of predictability.

I didn’t understand it to be a squabble between two different forms, or sources, of rules.

I agree with Jim’s description of common law as opposed to legislation, and with Garth’s point about the rule of law. Authorities’ powers are largely derived from legislation not common law, so the rule of law is often about whether the authorities followed the legislation when exercising the powers…

Jim’s skepticism about the Rule of Law is that laws imply enforcers and therefore a lack of consent at some point, and also they limit what free adults can agree to do. Others say that laws tend to restrict violations of freedoms e.g murder, theft, etc. There is something to be said for both points of view.

At the FMF AGM I heard that SA makes 100 new laws per year. Perhaps some of these replace bad ones and some old ones are scrapped but I believe that isn’t the case – many Apartheid laws are still on the books for example. I imagine (please correct me if I’m mistaken) that very few laws are primarily protective of basic liberty. If that is the case then the number of laws is a rough guide to our lack of freedom. A more accurate index would weight the laws in some way, and perhaps correct for enforcement levels, but I’m not sure the gain would outweigh the difficulty.

Another index would be a legal inequality index i.e. the proportion or number of laws that apply to only a segment of the population e.g. men or women, young or old, black or white.

Do you think such an index would have any validity and reliability, or am I just blowing smoke?

I think judges by hearing disputes, and the parties’ (or their legal representatives’) arguments about what rights and obligations apply to disputes of that kind, discover what are the best commonly-held common-sensical rights and obligations to apply to disputes of that kind and adjudicate according to those discoveries. These discoveries will not vary much at all in cases of disputes of the same kind. I prefer to say that the law applies, and judges merely say which party is entitled to the relief which the law affords. I think the common-law rule that murders should not go unpunished is a widely-held rule among the people and was not enacted by a particular judge. I don’t like the approach that judges make or enact law or legislate. They discover the so-called unwritten or common-law rules and (alas) interpret the legislatures’ enactments, and apply these rules or enactments to the facts of the cases before them…

> I prefer to say that the law applies, and judges merely say which party is
entitled to the relief which the law affords.
> I think the common-law rule that murders should not go unpunished is a
widely-held rule among the people and was not enacted by a particular judge.

I don’t like this because it gives some kind of objectivity to the law.

The reality is that somewhere in the deep history of man, people found the
norm to be that murder (under certain circumstances) was not ‘right’. Judges
then created law by stating what the norm was. The discovery for the judge
was of the norm, not the law. They create the law.

Subsequent acts of a similar nature become punishable by law which hopefully
reflects the social norm.

It is obvious that norms will change (on slavery for example) and judges
will alter the law accordingly.

In this respect, the law follows the norm.

It is conceivable that the law is out of step with the norm, in which case
we cannot say the ‘law has been discovered’. It is the norm that corrects
the law.

In my mind, what the common law judge does is more a process of inquiry to
determine, as far as humans can do, what the common or objective morality is
by searing for approach or reasonable men. Human fallibility, subjectivity
does no guarantee success with this endeavour, but over time the reasonable
/ objective view emerges through the precedent systems, reviews and views of
jurists. A sort of judicial consensus or the principles of the common law
emerges – one judgement at a time.

The common law judge is not engaged in a search for ‘norms’ but for ‘law’,
a particular type of norm that carries with it a particular type of view
about transgressions – namely that they ought to be sanctioned, because
conformance to this law/norm has social significance in the minds of
reasonable persons.

When the common law judge passes judgement he ‘declares’ the law rather than
‘makes’ it. In his mind it has always existed and the courts enquiry has
both revealed it and by passing judgment ‘fixes’ it as law.

So I agree with Heyek that he ‘finds the law’. Having found it he ‘makes it
‘objective’ law and it becomes binding through the common law mechanism of
precedent.

What he does not do, at least in his mind, is ‘make’ law – as a prince would
do, by declaring his discretionary ‘will’

Also the judge does not see his role in this as discretionary. In principal
at least his attitude is that one the principle has been discovered, his
duty is to apply it.

The common law recognises that in some instance the judge must exercise a
particular discretion, (heuristically expand to contract). The common law
has found and fixed rules to guide judges in a) recognising those instances
where a discretion is proper, and b) how to exercise a judicial discretion.

That we are subjective humans, holding opinions, in search of the objective
to which all opinions must give way – is the legal method. Judges have
learned (or Hayek’s particular mode of thinking is suffused with this
attitude) that in this humans may fail or produce unintended consequences so
judges are extremely conservative, finding only so much of the revealed law
is needed to solve their particular enquiry and extremely guarded about
expressing opinions as to the further application of the law leaving it to
the next judge to build or move along a different path.

So when all is said and done – common law ‘lawmaking’ for ultimately this is
what is done is as perfect a model for ‘creating’ law as man has been able
‘to discover’

In fact in Hayek’s constitutional thinking he saw parliament as comprising
the retired judges who became a ‘super court’ helping resolve juridical dead
ends is a similar judicial manner.

In all this I think Heyek the ‘doctor of laws’ was a great in his
understanding of jurisprudence as he was an economist or social thinker.

This arguement is along the same lines as an argument still ongoing in mathematics – between the Platonists, Formalists and Intuitionists. The Platonists think maths is an objective reality independent of human minds which is discovered. The Intuitionists think maths only exists in human minds. A version of Intuitionism says maths is a cultural construct. The Formalists view maths as a sort of game like chess that is built on a few axioms. Hayek’s view is Platonist. Neil’s view is Intuitionist. I don’t know whose view is Formalist but I’m sure someone’s is.

Kurt Godel destroyed Formalism’s hopes for completeness and consistency – and Wittgenstein’s language game outlook too btw – and he believed that proved that maths must be real and objectiv i.e. he made a case for Platonism.

My view is with Neil when it comes to law. Law is a human construct that is invented not an objectve reality that is discovered – even, as in the case with maths, it seems unreasonably effective.

TED – Ideas worth spreading
TED is a small nonprofit devoted to Ideas Worth Spreading. It started out (in 1984) as a conference bringing together people from three worlds: Technology, Entertainment, Design. Since then its scope has become ever broader.

The Independent Institute
The mission of the Independent Institute is to boldly advance peaceful, prosperous, and free societies grounded in a commitment to human worth and dignity.

The Secular Directory
This is a directory for organisations concerned with secular humanism where you will find links to the vast and growing community of reason, including atheist, agnostic, bright, freethought, humanist, naturalist, skeptic, and others.

Advocates for Self Government
Since 1985, the Advocates for Self-Government has worked to bring about a free society by empowering those who love liberty to become highly successful at taking the ideas of individual freedom and responsibility, free markets, and peace to the world.

African Liberty
Atlas Economic Research Foundation and IMANI’s African-focused program

Canadian Libertarian Party
The Vision of the Libertarian Party is for Canada to be a place where Limited Government and Personal Responsibility are recognized and established as the basis of society.

Cato Institute
The Cato Institute is a think tank dedicated to the principles of individual liberty, limited government, free markets and peace.

Dr Mary J. Ruwart
Dr. Ruwart is the author of HEALING OUR WORLD: THE OTHER PIECE OF THE PUZZLE, hailed by Visions Magazine as “what may be the most important book of the decade.”

FreedomFest
FreedomFest is an annual festival where free minds meet to celebrate “great books, great ideas, and great thinkers” in an open-minded society.

Health Policy Unit
dedicated to promoting a sound economic and business-friendly policy approach to the provision and funding of health care

Institute for Humane Studies
an institute devoted to research and education in the conviction that greater understanding of human affairs and freedom would foster peace, prosperity, and social harmony.

InterLibertarians
INTERLIBERTARIANS is the international association of whatever movements and parties share the fundamental Libertarian goals:

The Vega Five
The blog for the 5 winners of the Freedomfest essay competition.

Social Media Links

#FreeSA – LiPSA – Libertarian Party of SA
This group is a public forum administrated by the Libertarian Party of South Africa in order to promote the concept of a #FreeSA and the workings of the Swarm system.

About Libertarianism
This Page is automatically generated based on what Facebook users are interested in, and not affiliated with or endorsed by anyone associated with the topic.